Press publication of selections from Edward Snowden's purloined National Security Agency documents has focused attention on issues of surveillance.  In the months and years before those May 2013 revelations, however, the secrecy and accountability debate focused on drone warfare, not on NSA surveillance.  In the drone warfare secrecy and accountability debate, at issue was (and still is, just muted today) public disclosure of drone strikes and targeted killing by the CIA, operating under the authority of Title 50 of the United States Code.

The end of the first Obama term saw critics sharply intensify a public campaign aimed at politically, morally, and legally delegitimizing drone warfare. The campaign continues today. Those who unapologetically endorse drone warfare need to understand that the soft underbelly of counterterrorism conducted using drones and targeted killing is the legitimacy of these programs' secrecy, accountability, and oversight. Legitimacy is the soft underbelly in that it is vulnerable and needs shoring up; it's vulnerable because in a democracy, where government is accountable to the people, of course such issues have to be addressed.  If they are not, continually and forthrightly, silence raises questions about whether the American people should believe their own officials as to what these programs do and how they do it.

Many critics, to be sure, regard accountability and oversight as a procedural stalking horse for delegitimizing drone warfare as such, and particularly drone programs conducted by the CIA.  No process of either targeting or transparency will ever be enough; they will happily take whatever gains are offered by way of transparency as grounds to ask for more.  The appetite grows with the eating.  Irrespective of political goal, however, critics are not wrong to question the adequacy of the accountability mechanisms and oversight of these programs.

Clearly, there is room for certain reforms of secrecy, accountability, and oversight structures, but reform should proceed under two fundamental premises. First, there are legitimate government secrets. Second, accountability and oversight are the responsibility of the political branches alone, not of unelected and unappointed individuals such as Edward Snowden. These two premises are, importantly, not merely claims of politics or national security necessity; they are propositions about legitimacy and its terms.  Moreover, this is not simply a call for transparency in the form of more speeches and statements by senior officials, though those have been a vital tool of articulating national security law and its evolution, and of defending its legitimacy.  It is about reform at the statutory level — and one might begin with Title 50’s definition of "covert action" as a prelude to oversight processes that flow from it.

This might seem a strange starting point to those familiar with the functioning of the covert action statute since it was overhauled following the 1970s-era Church Committee hearings.  The statute, at Section 413b(e), defines "covert action" as “activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly” (the definition then lists certain exclusions).  Covert actions are subject to official secrecy or at least official non-acknowledgment, on the one hand, but also subject to corresponding official oversight and accountability to Congress on the other. The accountability and oversight process is robust and appears to have worked pretty well over the past 30 years. It ensures that the president has to know and approve the substance of these activities and that senior leadership in Congress will know about them as well. It might not seem obvious that this stands in need of reform, and less still that it ought to be one of the first steps.

But three factors come together to create weaknesses in the covert action accountability regime:  precision stand-off weapons; increased strategic reliance on discretely targeted counterterrorism uses-of-force that are enabled by new technologies; and the blurring of different kinds of counterterrorism uses-of-force that do not neatly fit into categories of the statutory definition.  Most obviously, the existing categories do not adequately address precision weapon technologies in counterterrorism operations. As everyone knows today, these operations have a range of public knowledge about them that includes truly secret; largely secret and unacknowledged; widely known but still seriously unacknowledged; everybody knows and the US government talks about it under a shredded fig leaf; and finally, only preposterously unacknowledged.

These descriptions sound like caricatures, but in fact it is they, not the US government's official “cannot confirm or deny” statements, that capture the real relationships of public knowledge about these operations.  Unfortunately, the legal definition of covert action forces them into a binary status of either covert or not. Today, there will be degrees of public awareness, and the nature of US government acknowledgment (or not) needs to be able to take that into account in its response.

All this calls for a reform of the definition of covert action to allow explicitly for different levels of appropriate acknowledgment and public information.  In some cases things must remain genuinely secret.  In others, revelation of the program and its legal and political bases — without acknowledgment of particular operations — should be required.  In others, acknowledgement of particular operations should be a matter of policy, but without any further details.  There is even room — given diplomatic realties and sensitivities of states where such programs might operate — for the category of "only preposterously unacknowledged," but it can't be the default option.

There is one additional statutory reform, however, that would have to take place in tandem with reform of the covert action definition: creation of a safe-harbor for the CIA (or relevant intelligence community actor) to refuse to respond to FOIA requests even in the case of acknowledged or quasi-acknowledged programs or activities, except as specifically required in the statute.  Much of the "only preposterously unacknowledged" category exists, after all, because of the government's legitimate fear that anything smacking of official acknowledgment will be enough to expose activities to gradual judicial revelation through FOIA.

Reform of any kind in these highly-contested, inevitably politically-charged intelligence areas will always be a balancing act.  Finding the political will to legislate structural reform of the intelligence oversight process is never going to be easy — but it is the only way to have a genuine chance for long-term stability and legitimacy to protect the requirements of national security secrecy in a democracy.

Return to the Briefing daily for new insights from Peter BerkowitzBenjamin WittesJack GoldsmithMatthew WaxmanJessica SternShavit MatiasTod LindberghRuth Wedgwood, and Philip Bobbit focusing on intelligence gathering in a digital age.

overlay image